STATE OF CONNECTICUT v. RICHARD BRUNDAGE
(AC 35419)
Appellate Court of Connecticut
Argued November 14, 2013—officially released March 11, 2014
148 Conn. App. 550
Gruendel, Keller and Borden, Js.
to make out a prima facie case for the negligent acts alleged in the complaint. Accordingly, the trial court properly dismissed the plaintiffs’ complaint.
The judgment is affirmed.
Raymond L. Durelli, assigned counsel, for the appellee (defendant).
Opinion
GRUENDEL, J. This case concerns the proper scope of a remand order. In State v. Brundage, 138 Conn. App. 22, 50 A.3d 396 (2012) (Brundage I), this court reversed the judgments of conviction of the defendant, Richard Brundage, of two counts of sexual assault in the first degree in violation of
On remand and prior to the commencement of that new trial, the state filed a substitute information charging the defendant with two counts of kidnapping in the first degree in violation of
In this appeal, the state contends that the court improperly concluded that the remand order in Brundage I precluded the
The relevant facts are not disputed. In Brundage I, the defendant was charged in two separate informations, which were consolidated for trial. This court reversed the defendant‘s judgments of conviction and remanded the matter to the trial court “for a new trial as to the charges that are not time barred.” State v. Brundage, supra, 138 Conn. App. 32. The rescript to the decision provides that “[t]he judgments are reversed and the cases are remanded with direction to dismiss count one of the Wolcott information and for a new trial as to the remaining charges.” Id., 39-40. That decision officially was released on September 11, 2012.
On November 26, 2012, the state filed a substitute information charging the defendant with two counts of kidnapping in the first degree, to which the defendant filed a written objection. In an attempt to resolve any ambiguity as to the scope of the remand order in Brundage I, the state on December 4, 2012, filed a motion for articulation with this court,2 which was dismissed. The trial court heard argument on the defendant‘s objection to the substitute information on January 24, 2013. At that time, the state argued that “if you look at the decision of the Appellate Court, there hasn‘t been—[it] didn‘t decide the issue of whether or not the state could amend the charges.” Defense counsel argued that “the reason we object is because we feel that the Appellate Court was very, very clear in its decision when it stated that the case was going to be reversed and remanded
for [a] new trial for charges that are not time barred. . . . [W]e feel it‘s very clear the Appellate Court was referring to charges not time barred regarding the sexual assault charges and that would be it.”
In ruling from the bench, the court agreed with the defendant, stating in relevant part: “It would seem to me what [the Appellate Court in Brundage I] contemplated was an amendment that would put the remaining charges within the period of the statute of limitations and an immediate retrial because, after all, the parties had been through an entire proceeding, a trial, a sentencing and appellate period, a remand. I don‘t think they contemplated starting again with new charges that would require discovery, that would require issues raised just in terms of any new charge that would come before the court. . . . I think the remand was clear, and I think the reason, the idea of the remand was that simply the state would amend the charges to reflect a time period within the statute of limitations and go back to trial fairly immediately as opposed to an entirely new prosecution. . . . Kidnapping was not charged in any effect during the prior proceedings. They would be, in effect, new charges that would allow for discovery and motions to be filed. It would be going back to day one as far as the arrest and prosecution of this defendant. So I don‘t think it was contemplated by the Appellate Court. I think I have to strictly construe any remand order. The remand order . . . [concluded that] the
The state claims that the trial court improperly sustained the defendant‘s objection. It argues that the state,
on remand from this court following our decision in Brundage I, was not precluded from filing additional charges via substitute information in the defendant‘s prosecution. The defendant maintains that the court properly dismissed the substitute information as beyond the bounds of the Brundage I remand and, further, that the charges contained therein are barred by the doctrine of res judicata. We agree with the state.
At the outset, we note that the abuse of discretion standard governs our review of a court‘s decision to permit a pretrial amendment to an information. State v. Ramos, 176 Conn. 275, 276, 407 A.2d 952 (1978); State v. Caracoglia, 78 Conn. App. 98, 101, 826 A.2d 192, cert. denied, 266 Conn. 903, 832 A.2d 65 (2003). Whether a trial court properly determined the scope of a remand presents a question of law, over which our review is plenary. State v. Tabone, 301 Conn. 708, 713-14, 23 A.3d 689 (2011). “Well established principles govern further proceedings after a remand by this court. In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . This is the guiding principle that the trial court must observe. . . . The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein. . . . These principles apply to criminal as well as to civil proceedings.” (Citations omitted; internal quotation marks omitted.) Id., 714-15.
The resounding mandate that emanates from this court‘s decision in Brundage I is that the state could not proceed on any charges against the defendant that were time barred under
The remaining question concerned the proper remand. In his appellate brief, the defendant urged this court “to set aside the judgment and dismiss the charge of sexual assault in the first degree,
warranted and instead contended that a remand for a new trial was appropriate. This court agreed with the state that a remand for a new trial, and not an outright dismissal, was the more appropriate order. Indeed, the decision in Brundage I expressly notes the aforementioned disagreement between the parties, stating: “Although the defendant acknowledges on appeal that prosecution of offenses that occurred after May 22, 2002, is not time barred, he argues that we should set aside the judgments of conviction and direct the trial court to dismiss the partially untimely charges, rather than remand the cases for a new trial. He fails, however, to provide any legal support for this request. Retrial here is not barred by the double jeopardy clause of the amendment. . . . In the absence of any persuasive reason to do otherwise, we conclude that the cases should be remanded for a new trial as to the charges that are not time barred.” (Citation omitted; footnote omitted.) State v. Brundage, supra, 138 Conn. App. 32.
The state maintains that this court in Brundage I simply addressed the distinct question before it concerning retroactive application of
conceded at trial that the state would have the opportunity to amend the informations if the court accepted his argument that the current version of
Viewed in context of the analysis set forth in Brundage I, we cannot say that the order remanding the matter “with direction to dismiss count one of the Wolcott information and for a new trial as to the remaining charges“; id., 39-40; precluded the state from filing a pretrial amendment to the information on remand. The decision merely returned the parties to the position that they would have been in had the trial court properly
As our Supreme Court has observed, “[t]he state‘s attorneys, who are responsible for prosecuting violations of the criminal laws of this state, are executive branch officials. . . . There can be no doubt that [t]he doctrine of separation of powers requires judicial respect for the independence of the prosecutor. . . . Prosecutors, therefore, have a wide latitude and broad discretion in determining when, who, why and whether to prosecute for violations of the criminal law. . . . This broad discretion, which necessarily includes deciding which citizens should be prosecuted and for what charges they are to be held accountable . . . rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. . . . [J]udicial deference to the decisions of these executive officers . . . also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function.” (Citations omitted; internal quotation marks omitted.) State v. Kinchen, 243 Conn. 690, 699-700, 707 A.2d 1255 (1998). Indeed, a
fundamental function of the state‘s attorney is “to determine [whether] there is reasonable ground to proceed with a criminal charge . . . .” State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).
It is well established that “[b]efore a trial begins, the state has broad authority to amend an information” pursuant to
Accordingly, the salient inquiry before the court in considering the propriety of the substitute information
was whether the state had proffered a sufficient factual basis on which to predicate the two counts of kidnapping in the first degree in violation of
In light of those factual allegations, the state was well within its broad discretion to charge the defendant with the aforementioned offenses. The mandate of Brundage
I is that the state could not proceed on any charges against the defendant that were time barred under
That determination, however, does not end our inquiry. The defendant also argues, as an alternate ground of affirmance, that the kidnapping in the first degree charges contained in the substitute information are barred by the doctrine of res judicata. We do not agree.
Res judicata is “a judicial doctrine“; State v. Ellis, 197 Conn. 436, 465, 497 A.2d 974 (1985); designed to inhibit the ability of “a plaintiff to litigate the same question over and over again, encumbering the mechanisms our society has established to resolve disputes . . . .” (Internal quotation marks omitted.) Sunbury v. Sunbury, 216 Conn. 673, 677, 583 A.2d 636 (1990). At the same time, our Supreme Court has instructed that this doctrine of preclusion “should be flexible and must give way when [its] mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.” In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983). For that reason, “the scope of matters precluded necessarily depends on what has occurred in the former adjudication.” State v. Ellis, supra, 467.
“Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter [that] was offered to sustain the claim, but also as to any other admissible matter [that] might have
been offered for that purpose. . . . Nonetheless, in applying the doctrine of res judicata to a [criminal] defendant‘s constitutional claim, special policy considerations must be taken into account. The
It is undisputed that the crimes of sexual assault in the first degree and risk of injury to a child differ from the crime of kidnapping in the first degree, in that they do not contain the same statutory elements. It also is undisputed that the kidnapping claims were not actually litigated in the original action. The defendant nevertheless contends that the state should be precluded from amending its information to include kidnapping claims.6
“The decision whether to apply res judicata to matters not actually litigated should be made in light of
the policies underlying that doctrine—the competing interests of the defendant and of the courts in bringing litigation to a close and of the plaintiff in the vindication of a just claim.” (Internal quotation marks omitted.) State v. Ellis, supra, 197 Conn. 465. The underlying purposes of the doctrine “are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation.” Id., 465-66. Consideration of those purposes in light of the facts of this case persuades us that the defendant‘s claim is without merit.
First and foremost, because this court remanded the matter to the trial court for a new trial prior to the filing of the kidnapping charges, judicial resources would not be conserved by application of the preclusion doctrine. There likewise is no danger of inconsistent judgments resulting from the defendant‘s prosecution on kidnapping charges. As the Supreme Court noted, “[o]ur statute of limitations distinguishes between offenses according to their severity, and there is nothing inconsistent in the fact that some prosecutions are barred where others are not.”7 Id., 476. Finally, this is not a case in which the defendant has been harassed by vexatious litigation. Following his successful appeal in Brundage I, this court remanded the matter to the trial court, effectively placing the parties in the
that time would have been free to amend its informations to include the kidnapping charges the defendant now wishes to preclude.
In his appellate brief, the defendant alleges that “[t]he state is seeking to retry the defendant on the kidnapping charges only because the defendant successfully exercised his constitutional and statutory rights to contest the validity of the original prosecution.” That bald assertion is not accompanied by analysis or reference to any evidence indicative of such animus. As the state persuasively has argued in this appeal, its decision not to pursue the kidnapping charges at the defendant‘s first trial “very well may have been influenced by the state of flux that existed in our kidnapping law in 2008 and 2009 . . . .” See State v. Salomon, 287 Conn. 509, 531, 949 A.2d 1092 (2008); see also State v. DeJesus, 288 Conn. 418, 426, 953 A.2d 45 (2008); State v. Sanseverino, 287 Conn. 608, 612, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008), and superseded in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009). Absent any evidence to the contrary, we presume that the state did not harbor such animus toward the defendant, but rather acted to vindicate its legitimate interest in the prosecution of crime.
Our Supreme Court has observed that “[e]very prosecution is necessarily ‘harassing’ and ‘vexatious’ from the standpoint of the defendant . . . . Principles of finality are offended only by that harassment which results from repetitious attempts to relitigate matters previously decided. Weighing against the minimal interests in finality presented by this case are strong social and legislative policies aimed at the effective administration of criminal justice.” State v. Ellis, supra, 197 Conn. 477. That logic applies with equal force in the present case. We therefore conclude that the doctrine of res judicata does not bar the state from amending
its information to include the kidnapping in the first degree charges.
The judgment is reversed and the case is remanded with direction to reinstate the November 26, 2012 substitute information and for further proceedings.
In this opinion the other judges concurred.